A Life of H. L. A. Hart: The Nightmare and the Noble Dream

A LIFE OF H.L.A. HART: The Nightmare and the Noble Dream. By Nicola Lacey New York: Oxford University Press, 2004 North American jurists are quite familiar with Professor Lon Fuller's contribution to the Hart-Fuller debate and to his seminal work in legal thought and philosophy as a Natural Law theorist, but one suspects that far less well known are the signal contributions of Herbert Hart to our overall understanding of positivist law and especially of his ongoing influence on contemporary debates touching upon the legalization of abortion and of homosexuality including the right of same-sex couples to marry, and to the abolition of capital punishment. Thankfully, Professor Nicola Lacey's elegantly phrased, evocative, and erudite exposition of the life and profound thoughts of this remarkable philosopher addresses this serious want of information. The resulting biography is a highly readable and vivid account of the historic role of one individual in the development of the Law, as influenced by a wealth of factors including his wife and life partner, his religious background, the peculiar institutions that are Oxford and Harvard, not to speak of the post-War clash of ideas and ideals surrounding the place of philosophy in the classrooms and curriculum of British and North American Law Schools. Leaving aside the general in order to focus on certain precise elements of Hart's life and teachings, a first comment surrounds the number of published books and articles. As noted by Professor Lacey on various occasions, when compared with present-day productive outputs of so many scholars, the handful of books and score of articles suggest that Hart might not have achieved success on the tenure track. Nevertheless, the immense influence of his work may be seen by the number of citations in contemporary judgments and law review articles. For example, I conducted a Quick Law search of Canadian Law reviews and was astounded to see that his three major works were cited 214 times in the last decade. As well, the Supreme Court of Canada continues to cite his writings regularly in groundbreaking cases. Indeed, two recent major biographies of Canadian judges refer to his influence. See Judging Bertha Wilson Law As Large As Life, concerning the first woman member of the Supreme Court of Canada (1), at p. 203 touching upon the Hart-Devlin debate [Toronto: Osgoode Society, 2001], and Brian Dickson A Judge's Journey, at pp. 122-159 [Toronto: Osgoode Society, 2003]. (2) The reference to Chief Justice Dickson will serve to introduce a second noteworthy element of this superb biography: the painstaking attention to detail that Hart's biographer has demonstrated throughout in reading not only his papers, journals, diaries, etc., as might be expected, but also the marginal notes he consigned in the books and articles he read, leaving aside the diaries of so many other contemporaries. In the case of Dickson C.J.C., his biographers were able to study the drafts of judgments he and his colleagues were working on and this ability to consider not only what His Lordship eventually held to be the correct view of the Law, but also the earlier tentative or strongly held views that were later modified or discarded, a rather controversial innovation. In the case of Herbert Hart, his biographer obtained the permission to not only become familiar with his most private thoughts, the most deeply held fears and aspirations, wants and upsets, but to disseminate them in the course of a far-reaching and penetrating study of his published thoughts and ideas. Far from being prurient, the resulting analysis is both incisive and thought provoking, not the least with respect to the degree that Hart's homosexual ideations may have influenced his liberal views on penal and societal proscriptions of same sex relationships. Turning to the heart of the matter, Hart's contributions to philosophy, legal positivism, and sentencing and penology, they are addressed with both legal acuity and a deft touch as befits the study of one who was both a gifted thinker and a complex individual in the often-turbulent years after the Second World War marked by emerging conflicts on many levels, notably the reshaping of the modern family. …

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